Supeyo & another v Karingithe (Suing as the representative of the Estate of Karkise Ole Mosire & 2 others; Nyamemba (Interested Party) (Civil Application E254 of 2021) [2024] KECA 271 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if you file a notice of appeal but don't pursue the appeal, your notice is deemed withdrawn and you pay costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' notice of appeal dated 26th May 2020 should be deemed withdrawn for failure to institute an appeal within the appointed time under rule 83 of the repealed Court of Appeal Rules, 2010
Key legal issues
#Effect of failure to institute an appeal within the appointed time after lodging a notice of appeal
The notice of appeal is deemed withdrawn under rule 83 and the Court may so declare on application by any party; the defaulting party bears the costs
The Court found it undisputed that the respondents had not filed the record of appeal since the judgment of 9th December 2019, with proceedings available since 12th February 2021. Counsel for the respondents conceded the failure. The pending stay application could not save the notice because it was not before the Court, and a delay of over three years afforded no reason to sustain the notice. The Court therefore allowed the motion.
Legal principles established
#- A party who lodges a notice of appeal but fails to institute the appeal within the appointed time is deemed to have withdrawn the notice, and the Court may so order on its own motion or on application by any party, with the party in default liable for costs
Court orders
#- 1.The applicants' notice of motion dated 15th July 2021 is allowed
- 2.The respondents' notice of appeal dated 26th May 2020 is deemed withdrawn (the substantive relief of the motion)
- 3.The respondents shall bear the costs of the said application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (ELC) at Kajiado
- ELC Case No. 372 of 2017
- Jurisdiction invoked
- Rules 81(1), 82(2) and 83 of the Court of Appeal Rules, 2010 (now repealed)
Relief refused
#Respondents' plea to sustain the notice of appeal given a pending stay application (E045 of 2024) premised on it
The stay application was not before the Court and the inordinate failure to file the record of appeal gave no reason to sustain the notice
Costs
The respondents shall bear the costs of the said application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time he shall be deemed to have withdrawn his notice of appeal and the Court may on its own motion or on application by any party, make such order.
We allow the applicants' notice of motion dated 15th July 2021. The respondents shall bear the costs of the said application.
given the conceded failure to file the record of appeal for more than three (3) years, there can be no reason for sustaining the notice of appeal on record
Issues in the judgment
#The judgment states the trial court's proceedings were ready 'since 12th February 2011' in one passage and 'since 12th February 2021' in another, an apparent internal date inconsistency
No neutral citation or formal case number for the application appears in the judgment text; the Notice of Motion date (15th July 2021) is the only identifier
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Supeyo & another v Karingithe (Suing as the representative of the Estate of Karkise Ole Mosire & 2 others; Nyamemba (Interested Party) (Civil Application E254 of 2021) [2024] KECA 271 (KLR)", Case Analysis (2024). Civil Application No. Nai. E of 2021 (Notice of Motion dated 15th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/271/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.